“It is Better to Suffer Once Than to Suffer Twice”: an Assessment of Sierra Leone’s Transitional Justice Mechanisms

Sierra Leone’s decade-long civil war, a conflict marked by extreme acts of systematic violence on all sides, wound to a close in January 2002 with the signing of a peace agreement between the government and the Revolutionary United Front (RUF) rebel forces. Transitional justice mechanisms were an integral part of the post-conflict period, first with the adoption of blanket amnesty and the establishment of the Sierra Leone Truth and Reconciliation Commission (TRC), and later the ad-hoc criminal tribunal, the Special Court for Sierra Leone (SCSL). The following examines how the distinct characteristics of Sierra Leone’s civil war – including the protracted peace process, the lack of a post-conflict political transition, and the legacy of local coping practices – impacted, and at times contested, the TRC and the SCSL. The operation of these mechanisms clashed with Sierra Leone’s post-conflict political and social context, passing over the opportunity to instead build upon the country’s local realities; this disconnect ultimately undermined the capacity for the transitional justice process to provide its intended goals of truth, justice, and reconciliation.

The Lomé Accord: Amnesty Provision and Eventual Breakdown

The tenuous nature of Sierra Leone’s transition to peace significantly complicated the transitional justice process. The Lomé Peace Accord of July 7, 1999, an attempt to end the conflict between the government and the RUF, was also the document that provided for the establishment of the Sierra Leone Truth and Reconciliation Commission (TRC), mandating a procedure “to address impunity, break the cycle of violence, provide a forum for both the victims and perpetrators of human rights violations to tell their story, get a clear picture of the past in order to facilitate genuine healing and reconciliation.”[1] The TRC was the only accountability component of the Accord, which otherwise provided perpetrators unconditional blanket amnesty for all crimes committed since 1991.[2] The amnesty clause was based on the assumption that the RUF would not sign any agreement that left its members open to prosecution, but this choice was made on grounds of practicality and political expediency and certainly not magnanimity: President Ahmad Tejan Kabbah’s government had been significantly weakened by the rebel siege on Freetown in early 1999, an operation that also exhausted the RUF, leading to a military stalemate.[3] It was in this atmosphere that the two sides came to the negotiating table, with the government capitulating to rebel demands primarily out of fear of prolonged violence that would culminate in a coup. The use of the amnesty concession as a transitional justice mechanism thus reflected the intractability of the conflict and the government’s weak negotiating position.

In providing amnesties, Sierra Leone follows dominant trends. In Transitional Justice in Balance, Tricia D. Olsen, Leigh A. Payne and Andrew G. Reiter survey all internal armed conflicts between 1970-1999, a total of 164 cases in 92 countries, and find that the use of amnesty had a higher occurrence than any other mechanism. Amnesty for rebels occurred in 56 percent of cases of ongoing conflict, contrasted with a 3 percent occurrence of trials for either rebels or state agents. Conflicts in which negotiation took place, such as Sierra Leone, were more likely than not to include amnesty provisions.[4] This prevalence of amnesty in ongoing conflict is intuitively logical: there is little incentive to sign a peace agreement that will ensure one’s own criminal prosecution, particularly when the use of force is still available.

Sierra Leone soon proved to be in the category of ongoing conflict. The RUF continued their hostilities, showing little regard for the terms of the signed agreement even with the amnesty provision: deciding against prosecution was apparently an insufficient strategy for ending the conflict. In effect, the intractability of the conflict was the impetus for including the amnesty clause, yet was also the factor that led to its subsequent breakdown.

Simultaneous Operation of the Truth Commission and the Special Court

In the wake of continued instability and with the terms of Lomé already broken, the Sierra Leonean government wrote to the UN calling for the establishment of a tribunal in which to hold RUF leaders criminally responsible. The Security Council approved the Special Court for Sierra Leone (SCSL) as part of January 2002’s final peace agreement. Its mandate was the prosecution of “persons who bear the greatest responsibility for the commission of crimes against humanity, war crimes and other serious violations of international humanitarian law, as well as crimes under relevant Sierra Leonean law.”[5] The TRC was originally meant as the sole justice mechanism to ensure that atrocities were accounted for, and at this point the government might have opted to replace it entirely with the SCSL. They chose instead to move forward with both mechanisms, and so with protracted violence delaying the TRC and the spontaneous establishment of the SCSL, the two ended up operating simultaneously.

This unintended partnership drastically transformed Sierra Leone’s transitional justice landscape. The most significant issue at hand was the confusion many Sierra Leoneans felt regarding the mandate and hierarchies of the TRC and SCSL, particularly when it came to information sharing. Although the TRC’s legislation provided for confidentiality, the SCSL had a provision specifying its supremacy over all courts with domestic jurisdiction, including the TRC, thus making any TRC documentation or testimony potentially vulnerable to SCSL subpoena.[6] Ultimately the greatest consequence of this unclear hierarchy was how it was perceived by Sierra Leoneans. The belief that information disclosed through TRC testimony would be used for indictment or prosecution at the SCSL was pervasive. In a series of 2003 interviews, Tim Kelsall found that Sierra Leoneans “had difficulty distinguishing between the TRC and the court and feared that confessions to the TRC may lead to prosecution . . . Several of the people I spoke to mentioned the court as a deterrent to giving statements to the TRC. Perpetrators, in particular, were determined not to incriminate themselves.”[7] As likewise noted by Thelma Ekiyor, “For the Sierra Leonean public the side-by-side existence of a commission that urged them to ‘tell the truth’ and a court that possibly waited to prosecute was confusing. This confusion deterred many ex-combatants from testifying.”[8] These observations are supported by statistical data showing that less than one percent of TRC statements were given by self-defined perpetrators.[9]

The public’s suspicion of coordination between the two institutions was at best counterproductive and at worst detrimental to the TRC’s transitional justice goals. The resulting self-suppression of testimony posed an huge obstacle to the TRC’s mandate to get a clear picture of the past from both victims and perpetrators in order to facilitate reconciliation. Furthermore, the ideological differences between the TRC and the SCSL – reconciliation versus retribution – were at odds and created a great deal of confusion for the Sierra Leonean public as to what the spirit of the transitional process was meant to be.

Lack of a Political Transition Following the Civil War

Examining post-civil war Sierra Leone in a comparative perspective also challenges the very notion of the transition itself. Ruth Teitel’s original definition of ‘transitional justice’ described a scenario “associated with periods of political change” where a new government “confront[s] the wrongdoings of repressive predecessor regimes.”[10] This model is associated most commonly with the South African Truth and Reconciliation Commission, which was established in the aftermath of apartheid to facilitate resolution and illuminate the atrocities of the white-minority-rule era. In most respects, however, Sierra Leone’s post-war transition defied South Africa’s clear political shift.

This was partly due to Kabbah’s continued presidency. Kabbah had begun his first term in 1996, and in 2002 was elected to another five years. In the same election, his party, the Sierra Leone People’s Party, won an overwhelming majority of parliamentary seats.[11] This carry-over of political power raised concerns in a number of areas, especially when it came time for Kabbah to testify before the TRC. There was widespread unease amongst both Sierra Leoneans and international observers that TRC commissioners, in particular Chairman Bishop Humper, were inappropriately close to Kabbah’s government and that this relationship would undermine the TRC’s neutrality in addressing the state’s role in the conflict. This fear was confirmed by Kabbah’s testimony at the commission’s closing hearing where he refused to apologize for any abuses on the state’s behalf.[12] Humper joined him in insisting that an apology was unnecessary, and used the TRC as a forum in which to thank the pro-government Civil Defense Forces (CDF, also known as the Kamajors) for having “defended the country.”[13] Considering CDF founder Samuel Hinga Norman was currently on trial at the SCSL for war crimes and crimes against humanity, this statement contributed to understandable public anxiety about whether the commission’s report would establish genuine and equal accountability for all perpetrators.

Likewise, perception of the government’s lackluster commitment to the transitional justice process largely contributed to many Sierra Leoneans’ decision not to testify themselves before the TRC. Rosalind Shaw found in interviews in 2003 and 2004 that many victims refused to testify about ex-combatants for fear of retaliation, doubting that the government had either the resources or the will to protect them: Shaw was often told by victims who refused to testify, “It is better to suffer once than to suffer twice;”[14] this belief that cycles of violence from the war could be easily reproduced reinforces the frailty of the country’s transition. Generally speaking, there was a lack of confidence that politics in Sierra Leone’s new, post-conflict era would be substantially different from those of the past decade. This sentiment was expressed in the TRC’s final report, which reported that, “While the government changed hands from one to the other, many of the faces remained the same. The popular adage about government was that Sierra Leoneans would board ‘a different bus, but with the same driver.’ Deep-seated pessimism now prevails as to whether things can ever really get better.”[15] Human Rights Watch’s 2002 country report likewise found that “Deep-rooted issues that gave rise to the war—a culture of impunity, endemic corruption, weak rule of law, crushing poverty, and the inequitable distribution of the country’s vast natural resources— remain largely unaddressed” following Kabbah’s re-election.[16]

The lack of meaningful support from the country’s leadership or change in social, economic, and political factors deterred TRC testimony and impeded the aims of the transitional justice process.

Local Reconciliation Practices and the Legacy of Civil-War Era Norms

Finally, Sierra Leone’s transitional justice mechanisms were subject to the lingering cultural context of the civil war and a lack of popular support for practices of testimony, accountability, and retribution. Kelsall’s finding from attending TRC hearings was that fully honest testimony was rarely forthcoming, positing that this was because the practice of public truth telling lacks roots in Sierra Leone’s cultural history.[17] Shaw similarly found that most people favored a “‘forgive and forget’ approach”[18] over public remembering or criminal prosecution. She suggests that this preference stemmed from the traumas of the slave trade, colonialism, and other previous conflicts; by the time the TRC entered their lives, Sierra Leoneans already had a developed historical practice of reintegrating combatants, reworking relationships, and rebuilding the moral foundation of their communities.

The ‘forgive and forget’ mentality may have also been culturally reinforced by the nature of the war itself. Sierra Leone’s conflict was characterized by the ‘sobels’, government soldiers who became rebels at night in order to take advantage of looting opportunities.[19] The chameleonic nature of the conflict meant that soldiers and factions changed sides frequently, and at times combatants impersonated each other to exacerbate civilian terror and mistrust. The collective effect of this mutability was that civilians rarely knew which group was committing violations against them, and tended to abrogate allegiances with any of the armed groups for fear of retaliation by an opposing group.[20]

As Kelsall describes, this conflict-era survival strategy contributed to the cultural context in which a public declaration of ‘facts’ at the TRC was anathema. Evasiveness was valorized during the war as a means for Sierra Leoneans to remain adaptable to whichever armed force or patron was in power. This imperative not to fix one’s allegiances was in direct conflict with the TRC’s request for a full, explicit and recorded confession.[21] Accordingly, the reluctance to participate in the TRC that Kelsall and Shaw observed drew its origins from both the long-term historical context of slavery and colonialism and the recent past of the civil war.

Conclusion

It is evident that the nature of Sierra Leone’s conflict both shaped and compromised how the transitional justice mechanisms functioned. The inclusion of amnesty in the Lomé Accord was a product of the conflict’s intractability, and its breakdown inadvertently caused the TRC and SCSL to operate simultaneously. This unintended partnership diminished the potential for truth telling at the TRC, as did the lack of a post-conflict political transition and the lingering wartime survival mechanisms dissuading people from public truth telling. Lessons learned for future endeavors recommend more conscientious inter-mechanism management and the securing of productive participation by government representatives. Crucially, local reconciliation practices should be acknowledged and integrated to ensure that the transitional justice process is appropriately tailored to the constituency it means to reach.

Endnotes

[1] National Legislative Bodies, Peace Agreement between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, July 7, 1999.

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